LAWRENCE O`DONNELL, HOST: Day one of marriage equality before the United States Supreme Court and we have two LAST WORD exclusives: the Academy award winning writer of "Milk" and the nephew of Harvey Milk both join me tonight.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: The fight over gay marriage comes to the nation`s capital.

UNIDENTIFIED MALE: A watershed moment at the United States Supreme Court.

CHRIS JANSING, MSNBC ANCHOR: Is there a constitutional right to same sex marriage?

UNIDENTIFIED MALE: We believe that Proposition 8 is constitutional.

JANSING: That states cannot deny.

TED OLSON, ATTORNEY: No one really offered a defense.

UNIDENTIFIED MALE: And then there were two high profile lawyers.

DAVID BOIES, ATTORNEY: I like it a lot better when this guy is on my side.

UNIDENTIFIED MALE: David Boies on your left, and Ted Olson on your right.

OLSON: We are confident where the American people are going with this.

UNIDENTIFIED MALE: Allies in the fight for same sex marriage.

OLSON: No one really offered a defense.

UNIDENTIFIED MALE: We`re not going to reargue the case out here on the sidewalk.

OLSON: It`s just wrong, it is not consistent.

UNIDENTIFIED MALE: This is about human rights, civil rights.

UNIDENTIFIED FEMALE: Opposition to this is aging out.

UNIDENTIFIED MALE: This thing is not going backwards.

BILL O`REILLY, FOX NEWS: I want all Americans to be happy, I do.

BOIES: It`s now in the hands of the Supreme Court.

UNIDENTIFIED MALE: Now, it`s in the hands of the court.

UNIDENTIFIED MALE: Demonstrations, though, they began early in the morning.

UNIDENTIFIED FEMALE: Proposition 8 is a discriminatory law.

UNIDENTIFIED FEMALE: There are no second class citizens.

UNIDENTIFIED FEMALE: It hurts the children we`re raising and it does so for no good reason.

UNIDENTIFIED FEMALE: There are no second class marriages.

UNIDENTIFIED MALE: We know how this is going to end.

UNIDENTIFIED MALE: It`s not just a legal brief, this is about people.

UNIDENTIFIED MALE: This is going to end with our full acceptance.

UNIDENTIFIED FEMALE: Opposition to this is aging out.

UNIDENTIFIED MALE: And even the conservatives, even they know it.

(END VIDEOTAPE)

O`DONNELL: After the Supreme Court`s hearing this morning on California`s ban on marriage equality, the first surprising news we heard came from the two lawyers fighting for marriage equality.

(BEGIN VIDEO CLIP)

DAVID BOIES, CHALLENGING PROP 8 & DOMA: There was no attempt to defend the ban on gay and lesbian marriage. All that was said in there was that this important constitutional right ought to be decided at the state level.

TED OLSON, ARGUED CHALLENGE TO PROP 8: No one really offered a defense for the awful discrimination that takes place when gay and lesbian citizens are not denied the right given to everyone else to have the family relationship recognized and respected equally.

JUSTICE SONIA SOTOMAYOR, U.S. SUPREME COURT: Outside of the marriage context, can you think of any other rational basis, reason for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?

CHARLES COOPER, LAWYER: Your Honor, I cannot.

(END AUDIO CLIP)

O`DONNELL: Mr. Cooper found himself trying to defend the preposterous idea that marriage is just for making babies.

(BEGIN AUDIO CLIP)

JUSTICE STEPHEN BREYER, U.S. SUPREME COURT: I mean, there are lots of people who get married who can`t have children.

JUSTICE ELENA KAGAN, U.S. SUPREME COURT: If you`re over the age of 55, you don`t help us serve the government`s interest in regulating procreation through marriage. So why is that different?

COOPER: Your honor, even with respect to couples over the age of 55, it is very rare that both couples, both parties to the couple are infertile and the traditional --

KAGAN: No, really, because if a couple -- I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.

(END AUDIO CLIP)

O`DONNELL: And then Mr. Cooper found himself desperately trying to lash himself to the wreckage of marital fidelity in America.

(BEGIN AUDIO CLIP)

COOPER: Your Honor, again, the marital norm which imposes upon that couple the obligation of fidelity.

SOTOMAYOR: I`m sorry, where is that --

(END AUDIO CLIP)

O`DONNELL: There was a lawyer in front of the United States Supreme Court trying to base his argument on what he calls the marital norm of sexual exclusivity, and sadly, Newt Gingrich was not there to cheer him on.

The point was laughable, if the court had time to laugh, but they ignored that nonsense to focus on the relevant issues.

Joining me for an exclusive interview are two of the founders of the group that is backing the challenge to Proposition 8, Dustin Lance Black, the Academy Award-winning screenwriter of "Milk", and Chad Griffin, president of the Human Rights Campaign. And also joining us is Julian Epstein, former chief Democratic counsel to the House Judiciary Committee.

Lance Black, I just have to ask you -- as a dramatist sitting in that room full of drama today, what were you most struck by?

DUSTIN LANCE BLACK, SUPPORTING PROP 8 CHALLENGE: Oh, I mean, being in that courtroom, it`s story telling at its most epic. I think what I learned most in the process, four year process, is that the courts are such a wonderful place for gay and lesbian people to tell our stories, because unlike ballot initiatives, the opposition actually have to come to court and testify under oath, and if caught lying, they`re called out for those lies.

It is a great place for gay and lesbian people to tell our truth. And, you know, that`s really how we made all of this progress quickly, is telling our personal stories so that people get to know us, that they know they know us.

So, you know, it was the ultimate and beautiful, liberating story-telling.

O`DONNELL: Chad Griffin for those of us not in the courtroom, who didn`t have that honor today, it was quite striking to see your lawyers come out and tell us that there really was no defense offered that they heard on the notion of forbidding gay people for marrying each other.

CHAD GRIFFIN, HUMAN RIGHTS CAMPAIGN: Lawrence, there never has been. Since the day that we followed this case and that historic trial happened nearly four years ago, we set out to prove those three things. And that`s exactly what was before this court, that marriage is a fundamental constitutional right that this court has found on 14 occasions, that there is grave harm done to our plaintiffs and those like them and their families in the state of California.

And third, and perhaps most important and something that`s counsel for our opposition had a hard time with today, there is absolutely no harm done by allowing same sex couples the right to marry. It doesn`t hurt anyone down the street. It doesn`t hurt a neighbor or another straight couple, and that`s exactly what we heard once again in court today, and they continued to struggle, countering those three points.

O`DONNELL: Julian Epstein, what do you think was the legal linchpin in the day?

JULIAN EPSTEIN, FORMER HOUSE JUDICIARY COMMITTEE COUNSEL: It is a fascinating and complicated case, Lawrence. There are as many as seven different outcomes here. If the court wants to arrive at a decision on the merits, it could that there`s an equal protection guarantee for same-sex marriage in 50 states, which I think is the only equal coherent protection reading. It could find that there`s equal protection guaranteed for same-sex marriage in eight states that have civil unions, which is the opposition of the Obama administration, that could find that there is a constitutional protection just in California, consistent with what the two lower courts had held, or it could find in fact that there`s no constitutional guarantee to same-sex marriage.

The problem is that there aren`t five votes for any of those positions. So I think what it looks like right now is that the court is actually moving to actually dismiss the case. Even if it dismisses the case, it could do it on one of three different possibilities. It could find that there`s no standing, it could find the case was improvidently granted, and that`s a -- improvidentially granted, which is a complex way of saying the court shouldn`t have taken the case in the first place, or it could find that it doesn`t want to arrive at the decision for other reason on its merits.

And I think the likelihood here is you`ll see Kennedy kind of kick the can down the road, punt on this, if you will, and join with four liberals, and throw the case out, find it was improvidently granted, which in the end of the day will mean that it`s a victory for California, because Proposition 8 will be vacated. But it still leaves the elephant in the middle of the room as to whether or not there is an equal protection guarantee for same-sex marriage, and that, of course, will also be part of the case tomorrow in the DOMA arguments.

O`DONNELL: Well, yes, Lance, that is front and center in tomorrow`s argument it seems like.

BLACK: Well, I`m telling you, I do not think this fight is done for any of us until we have full federal equality. You know, if you look back 30-plus years to Harvey Milk, who was taken from us, he started talking about before his assassination taking this fight federal. And that means that, you know, in my case, I have a big brother that came out to me when we were shooting "Milk." I love my big brother.

But when he came out to me, he didn`t sound hopeful like I did. I came out in California, he came out in Virginia. And he didn`t have laws protecting him. He didn`t see a future where he had freedom and have his love -- his future marriage -- his family respected and protected, and that`s a tragedy. And he passed away never knowing what it feels like to be a full American.

That is why we are taking this federal. That`s why none of us are going to be happy and satisfied until we have all 50 states, you know? And I think hearing those arguments in front of the nation today and understanding that all Americans deserve full equality, and full recognition and protection of their relationships, I think this is moving the narrative forward at a great pace. And that Americans understand that this has to be a federal issue now.

EPSTEIN: I think that`s exactly right, Lawrence. You know, Justice Hand used to have -- Learned Hand had a famous saying that law in the justice system is really the dead hand of the past.

And what he meant by that was the laws and judicial system represented the values and the mores of the earlier generation. And that`s the existential question the court is faced at, because this was pointed out. I think that marriage equality is going to be the law of the land because more of what`s going to happen at the ballot box than perhaps inside the Supreme Court.

And the question the court has to really reckon with now is, is there a valid -- at some point, they`re going to have to deal with the equal protection challenge, which as I said, Kennedy is trying to -- I think trying to avoid right now. But when they deal with that, regardless of what level of review, as we discussed on the show before, there are three levels of review when you get into equal protection analysis, you still have to make an argument, opponents of same-sex marriage, that there`s some a rational reason for denying same-sex marriages.

And the most interesting thing in today`s court was when the proponent, when Cooper tried to make the case as to why there is a government interest in banning same-sex marriages, he really couldn`t articulate one. And that`s the astonishing thing right now. The arguments made on behalf of the opponents of same-sex marriage are really in many ways quite laughable today, which is a dramatic change from where we were 2008.

O`DONNELL: Chad --

EPSTEIN: Sorry --

O`DONNELL: Chad, let me ask you. With your legal team in there today, what do you think they saw as the things that give them the most encouragement and the clearest signals about how to argue their case tomorrow?

GRIFFIN: You know, look, I am not a pundit or legal scholar, so I think I will leave that to Julian to articulate what those justices, what one could read or perhaps not read. But I know from our perspective, having Ted Olson and David Boies in that courtroom today, a Republican and a Democrat, representing those four plaintiffs and their families who are seated before those justices, we couldn`t have had a better team in there articulating why Proposition 8 is unconstitutional, why it should be erased from our books forever.

And I know that those who are working so hard to make the case for DOMA, and to make the case that DOMA is unconstitutional, and how Edie Windsor, the plaintiff in that case, was treated when her wife Thea passed away and she received a $360,000 estate tax bill simply because they were a same sex couple, that`s outrageous. That`s outrageous. That is outrageous.

And we look forward to seeing those arguments tomorrow. I will again be in the courtroom tomorrow, look forward to hearing that case made as well.

O`DONNELL: Lance, are you going to be in the courtroom tomorrow?

BLACK: I won`t be there tomorrow. I`m certainly going to be paying attention. The wonderful thing is the entire country is paying attention. I think we`ve come to a time where the entire country, they`re saying why are we treating anyone as a second class citizen, you know, why do we have second class marriages in some states and no relationship recognition in other states.

That time has to stop. That is un-American. And I`m so proud of this country right now for recognizing that, paying attention, and saying to their leaders, hey, it`s time -- it`s time to treat people fairly.

EPSTEIN: But I think tomorrow will be a better day for proponents of same-sex marriage. In the case of Proposition 8, I think you have a case where Justice Kennedy doesn`t want to apply equal protection to all 50 states. DOMA is a case where the government is denying benefits to those who are legally married in nine states that have same-sex marriage right now. What he is doing, and I think you will see DOMA invalidated, you will see Kennedy join with four liberals to cross the Rubicon on this equal protection case. And that I think is the most important thing that we can see legally for same-sex marriage advocates.

O`DONNELL: Dustin Lance Black and Chad Griffin, thank you for being our witnesses to history today. Julian Epstein, thank you for joining us also.

BLACK: Thanks, Lawrence.

GRIFFIN: Thank you, Lawrence.

O`DONNELL: Coming up, in a LAST WORD, exclusive, nephew of gay rights leader Harvey Milk joins me in his first national interview.

Gabby Giffords` husband Mark Kelly bought a gun, but now, the gun store owner won`t let him have it because the gun store owner doesn`t like Mark Kelly`s politics.

And in the "Rewrite," tonight, the lies of Senator Ted Cruz have people comparing him to the disgraced senator, Joe McCarthy. A comparison that doesn`t bother Ted Cruz a bit.

(COMMERCIAL BREAK)

O`DONNELL: Sixteen years ago when Defense of Marriage Act became law, only one Republican in Congress voted against it, just one House member. Every Republican senator voted for it, and all of the rest of the Republicans in the House voted for it, while Congressman Steve Gunderson of Wisconsin stood alone.

(BEGIN VIDEO CLIP)

STEVE GUNDERSON (R), FORMER WISCONSIN CONGRESSMAN: Frankly, I want to ask you, why shouldn`t my partner of 13 years be entitled to the same health insurance and survivor`s benefits that individuals around here, my colleagues with second and third wives, are able to give to them?

(END VIDEO CLIP)

O`DONNELL: Republican Congressman Gunderson said that in a House chamber where the speaker of the House was Newt Gingrich, who was then in his second marriage, and was not so secretly having an affair with the woman who would go on to be his third wife, Callista, who worked as a staffer for Congressman Steve Gunderson.

UNIDENTIFIED MALE: This is the Marriage Bureau, but it`s taken over by the gay activist alliance. Your mother and dad want to get married, are they gay?

Oh, I`m sorry, we can`t help you. No, no, I can`t, I`m sorry. But you come down and talk in person, I will be glad to talk to you. Give you some free wedding cake. We may have a gay celebration at the chapel. We have to think about it. Probably, oh, yes, we`ll be here quite awhile.

(END VIDEO CLIP)

O`DONNELL: We`ll be here for quite awhile. The 20 and 30 something activists who took over New York City`s Marriage Bureau in June of 1971 to fight for marriage equality would be in their 60s and 70s now. Those who remained in New York state saw that battle won 40 years later in June of 2011, when Governor Andrew Cuomo signed marriage equality into law.

Martin Luther King, Jr. famously said the arc of the moral universe is long but it bends toward justice. Some people like those activists stand bravely at the head of that arc, while others like the Prop 8 defenders outside the Supreme Court today cling to the injustices of the past.

(BEGIN VIDEO CLIP)

GARY BAUER, "AMERICAN VALUES" PRESIDENT: I`m a Republican. Let me say to my party, if you bail out on this issue, I will leave the party and I will take as many people with me as I possibly can!

You are all standing up against a powerful movement. You know that. It`s got Hollywood on its side. It`s got the culture on its side. It`s got the corporate elites and weak-kneed politicians get all squishy when they see these folks. What do we have to stand up against that?

Well, all we`ve got is a couple thousand years of Western civilization, the teachings of every major faith, common sense, and the God of Abraham. That`s who we`ve got.

(END VIDEO CLIP)

O`DONNELL: But they do not have Bill O`Reilly.

(BEGIN VIDEO CLIP)

MEGYN KELLY, FOX NEWS: When you ask, for example, I had an interview with Tony Perkins of Family Research Council, what is it about calling marriage, calling a gay union marriage that offends you, how does it hurt traditional or heterosexual marriage? And I didn`t hear anything articulated that was particularly persuasive. What people go back to --

O`REILLY: I agree with you 100 percent. I agree with you 100 percent.

KELLY FEMALE: Wow, OK.

O`REILLY: The compelling argument is on the side of homosexuals. That`s where the compelling argument is. We`re Americans. We just want to be treated like everybody else.

That`s a compelling argument. And to deny that, you got to have a very strong argument on the other side.

KELLY: And the argument on the other side --

O`REILLY: And the other side hasn`t done anything but thump the Bible. I live in New York, I am fine with it. I want all Americans to be happy, I do.

(END VIDEO CLIP)

O`DONNELL: In 1977, Harvey Milk became was the first openly gay person elected to public office in the state of California, when he won a seat on the San Francisco Board of Supervisors. He was in office less than a year, helping to pass a landmark gay rights ordinance before he was assassinated, while at work in his office, in city hall.

Joining me now for his first national television interview, the late Harvey Milk`s nephew, Stuart Milk. He is the cofounder and president of the Harvey Milk Foundation, which supports LBGT freedom movements on five continents.

Thank you very much for joining me tonight, Stuart.

STUART MILK, HARVEY MILK FOUNDATION: Oh, it`s a pleasure to be here, Lawrence, on such a historic night.

O`DONNELL: Well, you know, these are the nights when we think of Harvey Milk, we think of the people that were in this battle decades ago and we wish he was around so we could ask him how he feels. He`d be 83 I think now. And he`d be watching Bill O`Reilly agree with him on something like this.

What does it feel like for you this historic week in the Supreme Court?

MILK: Well, it`s an amazing -- it`s an amazing journey we`ve been on. And I really do see my uncle as actually being with us in many ways. You know, a lot of people ask me if I`m saddened that my uncle didn`t get to see a day like today, a day when so many people would be authentic and be asking for the celebration of their -- of their marriages and celebration of who they are and their authenticity.

And I always answer that my uncle did see that, which is why he was able to give his life, why he knew that those bullets were coming but he was willing to take them, and it`s really important to understand that just as we heard the opponents to equality talking about not having an argument, there`s really not a good argument against authenticity. People coming out, people letting people know who they are and who we are is not the lies and the myths and innuendoes that are spread against LBGT people, but we`re their neighbors, we`re their cousins, we`re their children. That breaks through everything.

And marriage equality sets the bar much, much higher. We have been arguing and talking and fighting for nondiscrimination, and in some ways, that`s the language of tolerance. Now we`ve got young people and people like Chad Griffin and Dustin Lance Black, who you just had on who said, why aren`t we going for the whole enchilada? Why aren`t we going for marriage?

And this setting the new bar at marriage has really leapfrogged the LBGT rights movement, like we have never seen. It`s really a historic time for all of us.

O`DONNELL: The Anti-Defamation League has put out a new video called "Imagine a World Without Hate" in which they imagine we didn`t lose some of our heroes at such young ages. Let`s look at that a second.

(VIDEO CLIP PLAYS)

O`DONNELL: Their headline for your uncle was "Harvey Milk expands LBGT equality globally," which is exactly the fight you have been in, that you`ve chosen. As we know, Lance Black`s brilliant movie about Harvey Milk I think brought him to an entirely new generation who may not have had such an awareness.

What is it like for you now post-movie when you talk about Harvey?

MILK: Oh, it`s been a great educational instrument because we find people all across the world, in particular in cultures and societies where we have tremendous diminishment of not just LBGT people, of women, other ethnic and racial minorities, and they saw this man build collaborations, and proudly talk about who he was, and stand up for and say you must come out and say you must talk about who you are and you must let people know -- don`t hide, take off that mask.

That has really resonated, in particular, like I said, in countries where they`re facing tremendous oppression. And so, he`s become a beacon of light and a beacon of hope, and we have been able to build upon that message throughout the world.

O`DONNELL: Stuart, before we go, I think we have a picture of you and Harvey that I`d like to get on the screen if we can. There you are, you and your uncle. Not sure what year. But I`m sure you`ve seen that before.

Stuart Milk, cofounder of the Harvey Milk Foundation -- thank you very much for joining us tonight.

MILK: Thank you.

O`DONNELL: Coming up, the latest South Carolina poll is very good news for the Colbert family. Stephen Colbert`s sister is now officially the frontrunner in her congressional campaign.

(COMMERCIAL BREAK)

O`DONNELL: Art is usually ahead of the curve. Artists frequently get there first, and then society follows. Yes, there is art in sitcoms, as there was in this episode of "the Golden Girls" written a full 22 years ago by Mark Cherry, Jamie Wooten and Susan Harris.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Oh, look, I can accept the fact that he`s gay. But why does he have to slip a ring on this guy`s finger so the whole world will know?

UNIDENTIFIED FEMALE: Why did you marry George?

UNIDENTIFIED FEMALE: We loved each other. We wanted to make a lifetime commitment. Wanted everybody to know.

UNIDENTIFIED FEMALE: That`s what Doug and Clayton want, too. Everyone wants someone to grow old with, and shouldn`t everyone have that chance?

UNIDENTIFIED FEMALE: Sophia, I think I see what you`re getting at.

UNIDENTIFIED FEMALE: I don`t think you do. Blanch, would you marry me?

(LAUGHTER)

UNIDENTIFIED FEMALE: Thank you, Sophia. I need to go talk to them.

UNIDENTIFIED FEMALE: Fine. But I`ll need an answer. I`m not going to wait for you forever.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

O`DONNELL: In the spotlight tonight, gun control for gun control advocates only. Two weeks ago, Gabby Giffords` husband Mark Kelly bought a used military style rifle, which he said he planned to donate to the Tucson Police Department. When the gun nuts questioned why a gun store would cooperate with a gun control advocate, the owner of the store posted this statement on Facebook: "Mr. Kelly is a U.S. citizen and Arizona resident exercising his Second Amendment rights to legally purchase and own a firearm. To suggest that we should refuse a lawful sale to any qualified individual because we may disagree with the individual`s political or personal views on a particular subject is wrong and is not a business practice that my company or our employees would ever engage in."

Ever meaning, well, you know, not today anyway. But somewhere during the city`s mandatory 20 day waiting period for used weapons, the gun store owner changed his mind. Here is what he posted to Facebook yesterday: "while I support and respect Mark Kelly`s Second Amendment rights, his recent statements to the media made it clear that his intent in purchasing the Sig-Sauer M-400 5.56mm rifle from us was for reasons other than for his personal use. In light of this fact, I determined that it was in my company`s best interest to terminate this transaction."

Joining me now, MSNBC`s Krystal Ball and Ari Melber. And so Krystal, tonight we have in America at least one merchant of the tools of murder who is unwilling to sell them to at least one American.

KRYSTAL BALL, MSNBC POLITICAL ANALYST: Standing up for gun control, yeah. I like that when the politics of the issue went to a place that he didn`t like, not only was he ready to discard the Second Amendment but also the first and any others that would be convenient to get the gun nuts on the blog back on his side. One of the things that has been interesting in this debate is when you talk about the specifics of the issue, when you talk about what we are actually advocating for, things like universal background checks, the public is very much in support.

But they want to keep it in the broad terms of Second Amendment and freedom rather than digging down into those specifics. So that`s sort of the turf that this battle is being fought on.

O`DONNELL: Ari, polls continue to show that there is very, very strong support for background checks, for the legislation that the Senate Democrats are trying to push through there. But of course, we got the threat today, official threat today in writing by Rand Paul, Ted Cruz that they will object to the motion to proceed, which of course we knew anyway, that you were going to need 60 votes to get to the motion to proceed. It is unclear whether they`re going to do one of their grandstand filibuster performances on this. But they`re going to definitely try to stand in the way.

ARI MELBER, "THE NATION": Yeah, look, I think we`re watching Rand Paul and Ted Cruz learn the rules of the Senate as they go along, begin their Senate terms. So they have hit on this idea of trying to have more dramatic filibusters. I think this is one where all they are doing is drawing attention to the fact that Republicans have a standing threat on these cloture motions, making the Democrats come up with 60. Harry Reid said with regard to the assault weapons ban a week ago -- he said right now, that amendment, using the most optimistic numbers, has less than 40 votes. That`s not 60.

The assault weapons ban being something that a lot of us care about. And Reid took it as a given that there would be a 60 vote requirement. So that`s something that`s wrong with the Senate, wrong with the ways Republicans do obstruction. I think this is a louder version of it.

O`DONNELL: Krystal, when we see incidents like this where a gun store owner is saying, I`m not going to sell it to Gabby Giffords` husband because I do not like what he thinks, we are seeing the madness that is out there on the other side of this issue. And here is a guy, by the way, who didn`t sound crazy just a few days ago.

BALL: Right.

O`DONNELL: And now is completely gone around the bend.

BALL: Well, they`re bullies on that side. If you aren`t 100 percent with them, then they go right into the slippery slope argument. And the next thing you know, we are going to have tyranny and the government is going to come and take all of the guns away. And this is the way that the NRA has won on this issue and thinks that they will continue to win, rather than talking about the specific choices that we could make, the limited legislation that we`re talking about. They speak in these broad terms about freedom and demonize anyone who isn`t 100 percent where they want them to be.

O`DONNELL: Krystal Ball and Ari Melber, thank you both for joining me tonight.

BALL: Thanks, Lawrence.

O`DONNELL: Coming up, Senator Ted Cruz is in the Rewrite tonight because he seems to have absolutely no problem when you compare him to a disgraced former senator who was censured by the Senate and then drank himself to death. It`s OK with Ted Cruz if you say he might be like Joe McCarthy.

And the latest poll in South Carolina shows the Colbert bump is really working for Stephen Colbert`s sister.

(COMMERCIAL BREAK)

O`DONNELL: In tonight`s Rewrite, 21st century McCarthyism. Dictionary.com defines McCarthyism as "the practice of making accusations of disloyalty, especially of pro-Communist activity, in many instances unsupported by proof or based on slight, doubtful or irrelevant evidence."

McCarthyism is, of course, named after the 1950s Republican Senator Joe McCarthy, who made wild accusations about communists running our government back when, you know, communists were not running our government. Senator Ted Cruz has recently been compared to Joe McCarthy. The "New Yorker" ran this invaluable piece by Jane Mayor, "Is Senator Ted Cruz Our New McCarthy."

The "New Yorker" is way too classy to do the cheap trick of sticking a picture of McCarthy next to a picture of Cruz, when asking the question "is Senator Ted Cruz our new Joe McCarthy." But any fair minded judge would have to admit that there is a bit of a resemblance there.

The McCarthy comparison has come up because Ted Cruz tried to slander Chuck Hagel during his confirmation hearing and because Ted Cruz really is the last person left in America and possibly the world who is still worried about communists. And like Joe McCarthy, he is so worried about communists that he lies about communists and is especially fond of lying about who is a communist.

In 2010, at an event in Texas funded by the billionaires Charles and David Koch, and reported to us by Jane Mayer, who was there, Ted Cruz actually said that when he was at Harvard Law School, a few years after Barack Obama, there were 12 professors there who, quote, "believed in the communists overthrowing the United States government."

Like Joe McCarthy, Ted Cruz knew he was lying when he said that. He knew there wasn`t a single professor at the Harvard Law School who was a communist who believed in overthrowing the United States government. But he also knew that he could safely lie about the people who tried to educate him in the law to people who would never find themselves anywhere near the grounds of the Harvard Law School, and so lie he did.

Despite being publicly challenged on this lie on this program and elsewhere, Ted Cruz, not surprisingly, has not revealed the names of his imagined 12 communist professors. And he has not revealed the name of even one of them because -- and he never will -- because, of course, they did not and do not exist. We`ve seen a lot of mud slinging in the Senate since Joe McCarthy`s time. We have seen a lot of character assassination in the Senate. But we have never seen anything quite so perfectly and childishly McCarthy-esque as Ted Cruz.

And so one of his own state`s own newspapers decided to ask him about Joe McCarthy. Todd Gillman of the "Dallas Morning News" interviewed Senator Cruz recently and asked him, quote, "is McCarthy someone you admire?"

Now, there`s only one conceivable answer to that question, and no more than one word should ever be necessary to answer that question. And that word is, of course, no. "Is McCarthy someone you admire" is not a trick question. It couldn`t be simpler. And the answer couldn`t be simpler.

But for Ted Cruz, it is a question that he refused to answer. What would Joe McCarthy do with a witness like Ted Cruz if Joe McCarthy asked him, is so and so someone you admire, and Ted Cruz`s answer was, I am not going to engage in the back and forth and the attacks?

That actually was, word for word, Ted Cruz`s answer to "is McCarthy someone you admire." "I`m not going to engage in the back and forth and the attacks." Ted Cruz could not bring himself to say no, I do not admire Senator Joe McCarthy. Here is what the world knows about Senator Joe McCarthy. He was a lying alcoholic who was censured by the Senate in 1954 and drank himself to death three years later at the age of 48. That`s the guy Ted Cruz maybe admires or maybe doesn`t.

The Senate censure resolution against Joe McCarthy actually used the word "condemned" instead of censure. Censure didn`t feel like a strong enough word to them. That`s how bad a senator Joe McCarthy was. The vote to condemn Joe McCarthy was a bipartisan vote, 67 to 22. Half of McCarthy`s Republican colleagues voted to condemn him.

And Ted Cruz is not willing to say whether Joe McCarthy is someone he admires. And he won`t say that because Ted Cruz wants to live in a world where he can use Joe McCarthy`s tactics and get away with it. Joe McCarthy`s lying provoked the most famous challenge to a senator in a Senate hearing in the history of the Senate. And luckily for us, it occurred at the dawn of the television age in a hearing in which McCarthy was asked a question and like Ted Cruz, he could not answer it.

It is the question that effectively ended Joe McCarthy`s career: "have you no sense of decency?"

(BEGIN VIDEO CLIP)

JOSEPH N. WELCH, COUNCIL, U.S. ARMY: Have you no sense of decency, sir? At long last, have you left no sense of decency?

SEN. JOE MCCARTHY (R), WISCONSIN: Mr. Chairman, as a point of personal preference, I would like to finish this.

WELCH: Senator, I think it hurts you, too, sir.

If there is a God in heaven, it will do neither you nor your cause. I will not discuss it further. I will not ask Mr. Colt any more witnesses. You, Mr. Chairman, may, if you will, call the next witness.

(APPLAUSE)

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

JIMMY FALLON, "LATE NIGHT WITH JIMMY FALLON": Your sister --

STEPHEN COLBERT, "THE COLBERT REPORT": -- she`s running for Congress.

FALLON: She`s running for Congress?

COLBERT: Yes. She`s going to be the Democratic nominee in the first district of South Carolina.

I just hope that what I do for a living doesn`t sully her good character.

She`s an incredible person.

She raised three kids by herself on a salary of like 14,000 dollars a year.

FALLON: Really?

COLBERT: Yeah, and then went to college, made something of herself. Now she`s going to be the Democratic nominee from South Carolina. Isn`t that incredible?

FALLON: Very good.

(APPLAUSE)

(END VIDEO CLIP)

O`DONNELL: Tonight we have proof that what Stephen Colbert does for a living is not sullying his sister`s good character. The first independent poll for South Carolina`s special election to fill a vacant Congressional seat shows that among likely voters, Democrat Elizabeth Colbert Busch polls at 47 percent and Republican Mark Sanford polls at 45 percent.

This is in a district that voted for Mitt Romney by 18 points, John McCain by 14. Here is Elizabeth Colbert Busch`s campaign message.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Elizabeth knows jobs. She`s worked her way up to director of sales in a shipping company.

UNIDENTIFIED MALE: It is exports. It`s working with business and creating thousands of jobs.

UNIDENTIFIED MALE: Elizabeth Colbert Busch, mother, grandmother, wife an a Charleston business woman for 25 years.

ELIZABETH COLBERT BUSCH, CANDIDATE FOR U.S. CONGRESS: I`m Elizabeth Colbert Busch and I approved this message because I am running for Congress to create jobs in South Carolina. That`s what I know.

(END VIDEO CLIP)

O`DONNELL: Forty five percent of likely voters have a favorable opinion of Elizabeth Colbert Busch, 31 percent have an unfavorable; 34 percent have a favorable opinion of Mark Sanford; 58 percent have an unfavorable opinion of him. Former Governor Sanford`s truly horrible favorable and unfavorable ratings will surely be a caution for any other South Carolina politician who might ever be tempted to tell the truth about marital troubles.

(BEGIN VIDEO CLIP)

MARK SANFORD, FORMER GOVERNOR OF SOUTH CAROLINA: I have been unfaithful to my wife. I developed a relationship with a -- it started as a dear, dear friend from Argentina.

(END VIDEO CLIP)

O`DONNELL: Joining me now, MSNBC`s Joy Reid. Joy, it turns out that Elizabeth Colbert Busch has a small lead over Mark Sanford, but Mark Sanford doesn`t have that Republican nomination yet. He has to win that in a runoff against what`s his name, Bostick -- right, Curtis Bostick. He has a good -- he`s got a big lead over Bostick right now.

JOY REID, MSNBC POLITICAL ANALYST: Yes, he has the name recognition, for better or for worse, I guess you could say, Mark Sanford does. But Bostick has an interesting story too, because Rick Santorum is actually going to be campaigning with him tomorrow. So they`re trying to run to the right of Sanford and sort of say that the true conservative sort of Tea Party approved alternative is Bostick. I think it is likely Sanford will still get it.

O`DONNELL: And I think we can expect Rick Santorum to hit the old family values note down there against the former governor.

REID: Yes, no, absolutely. And it is interesting the way that the two of them are running, right? So Elizabeth Colbert Busch is doing a classic Democratic message, jobs, jobs, jobs. Mark Sanford is essentially, if you look at his ads, running against Washington, running against spending, sort of trying to craft a message that crowds out the issue of family values. But there is a major, major wild card in this race. And that is Jenny Sanford, Jenny Sanford who has the highest approval ratings of anyone that you name tonight in all of these polls, in the public policy poll. She is the being courted right by the Elizabeth Colbert Busch campaign.

If she were to endorse Elizabeth Colbert Busch, that would be a game changing move in this race, because what Mark Sanford is desperately trying to avoid is any mention of family values, marriage, or the Appalachian Trail.

O`DONNELL: Yes, Jenny Sanford favorable 55 percent, unfavorable 18 percent. But Elizabeth Colbert Busch, it seems, is silently rooting right now for Mark Sanford to win that nomination, because she actually polls in a tie at 43 to 43 with the other guy.

REID: Yes. And this is a district that is very, very conservative. You showed the polling numbers for Barack Obama, for John McCain, versus Mitt Romney, et cetera. So it is a very conservative district. And Bostick fits I think ideologically probably more with the district. But it`s tough for him to overcome, again, the name recognition that Mark Sanford has.

Bostick would clearly run better against Elizabeth Colbert Busch, but that poll also had a respondent rate that 54 percent women. Women are going to be a huge factor in this race. And I think whether it`s Bostick or whether it`s Mark Sanford, what Elizabeth Colbert Busch has going for her is what she said in that ad. She`s a mom. She raised her children and she`s a business woman. She`s doing jobs, jobs, jobs, and she`s running on girl power. So I think she actually has a shot.

O`DONNELL: And she`s running in a district that is 55 percent female, 45 percent male. SO that sounds like it is the right mix for that.

REID: It`s the right mix for her and it`s a big, big problem for Mark Sanford. Because again, Appalachian Trail.

REID: Yes, indeed. I am on at noon for "NOW" with Alex Wagner, and of course Alex Wagner is at 8:00, so we`re all just sort of doing some switching around in terms of schedules.

O`DONNELL: Thanks for joining us.

END

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